Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 20 10:01 AM-23CV006611

IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO

CIVIL DIVISION

CHRISTINA COLLINS, et al., [] CASE NO. 23 CV 6611

][
PLAINTIFFS, [] JUDGE HELD PHIPPS
][
vs. [] MAGISTRATE HUNT
][
THE STATE OF OHIO, et al. []
][
DEFENDANTS. []

MAGISTRATE’S DECISION ON PRELIMINARY INJUNCTION

This matter was initiated by a Complaint filed on September 19, 2023 (“Original

Complaint”) by Plaintiffs – Christina Collins, Teresa Fedor, Kathleen Hofmann, Tom

Jackson, Meryl Johnson, Antoinette Miranda, and Michelle Newman (collectively

“Original Plaintiffs”) – against Defendants State of Ohio and Mike DeWine Governor of

the State of Ohio (collectively “Defendants”) wherein the Original Plaintiffs sought

Declaratory Judgment and Temporary, Preliminary, and Permanent Injunctive Relief.

The Original Plaintiffs sought to prevent certain provisions of H.B. 33 from going into

effect. Specifically, the Original Plaintiffs sought to prevent enforcement of R.C.

3301.13, R.C. 3301.111, R.C. 3301.12, and R.C. 3301.07. In the Original Complaint,

Plaintiffs sought to prevent the relevant provisions of H.B. 33 from “strip[ping]” them “of

nearly all of [their] official duties and responsibilities as a member of the Board” of

Education. Ms. Collins and Ms. Newman also asserted that they were proceeding with

separate standing as parents of children who attend Ohio public schools. The Original

Plaintiffs hired their own counsel who entered appearances.

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Following a hearing on September 21, 2023, the Court granted the Original

Plaintiffs’ request for a TRO in part. An Order filed the same day ordered the following:

It is ORDERED that Defendants, as well as their officers, agents, servants,

employees, attorneys, and any other persons who are in active concert or
participation with any of them are enjoined from enforcing, implementing,
complying with, or acting pursuant to R.C. 3301.13, R.C. 3301.111, R.C.
3301.12 and R.C. 3301.07 in any way or manner including by, without
limitation: (1) creating the Department of Education and Workforce, as
contemplated by Ohio Revised Code Section 3301.13(A); (2) appointing an
individual to act as the director of the department of education and workforce,
as contemplated by Ohio Revised Code Section 3301.13(A); and (3)
transferring all of the Board’s powers and duties regarding primary,
secondary, special, and career-technical education to the director of the
department of workforce and education, as contemplated by Ohio Revised
Code Section 3301.13(C);

The matter was scheduled for a hearing on October 2, 2023, before this Magistrate on

the Original Plaintiffs’ request for a preliminary injunction.

On September 27, 2023, the Ohio Attorney General’s Office (“A.G.”) filed a

Motion to Substitute the Ohio Attorney General’s Office as Counsel for Plaintiffs,

Members of the Ohio State Board of Education (“Board of Education”). In an Entry filed

on September 29, 2023, the Court granted the A.G.’s motion in part and substituted the

A.G.’s Chief Counsel and Ethics Officer, Bridget Coontz, as counsel for all seven

Plaintiffs as it related to their claims that the relevant provisions of H.B. 33 would strip

them of most of their official duties and responsibilities as elected members of the Board

of Education. The Entry further stated that the Court was permitting private counsel for

Ms. Collins and Ms. Newman to continue their representation as to their assertion of

standing to sue as parents of children in Ohio public schools. On September 29, 2023,

the A.G. filed a Civ. R. 41(A) voluntary Notice of Dismissal as to all claims filed by

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Plaintiffs Christina Collins, Teresa Fedor, Kathleen Hoffman, Meryl Johnson, Antoinette

Miranda, and Michelle Newman in their capacity as State Board of Education Members.

On October 1, 2023, the Verified Amended Complaint was filed in this matter

which set forth the same claims as the Original Complaint. However, under the

Amended Complaint Ms. Collins and Ms. Newman assert that they are proceeding

solely as parents of children who attend Ohio public schools. The amended complaint

added an additional plaintiff who is proceeding as a parent of children who attend Ohio

public schools, Stephanie Eichenberg. (Collectively “Parent Plaintiffs”). The Amended

Complaint also added the Board of Education of the Toledo City School District (“TPS”)

as an additional plaintiff. TPS asserts that it is proceeding as a political subdivision of

the State of Ohio whose Board is organized and operates under R.C. 3313 et seq. and

is responsible for setting education policy for the Toledo Public Schools and voting on

subjects such as curriculum, personnel, and finances. Ms. Eichenberg and TPS joined

the Original Plaintiffs’ Motion for Temporary and Preliminary Injunctive Relief.

The hearing on Plaintiffs’ request for a preliminary injunction under the Amended

Complaint was held on October 2, 2023, in Courtroom 2A and was recorded by

electronic means. Plaintiffs were represented by attorneys Amanda Martinsek,

Katherine Poldneff, Gregory Djordjevic, Madeline Gitomer and Jeffrey Dubner. Plaintiffs

presented the testimony of Christina Collins, Stephanie Eichenberg and Sheena Barnes

and offered Exhibits 1 through 39 which were admitted into evidence. The Magistrate

notes that Plaintiffs did not present the testimony of plaintiff Michelle Newman.

Defendants were represented by A.G. attorneys Julie Pfeiffer and Phillip Kelly.

Defendants presented the testimony of Jessica Voltolini and offered Exhibits A through

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K which were admitted into evidence. At the hearing’s conclusion, counsel was ordered

to file Proposed Findings of Fact and Conclusions of Law by October 4, 2023.

On October 3, 2023, the Court conducted an emergency hearing to address an

email sent by Assistant Attorney General Coontz to counsel for Defendants, Julie

Pfeiffer, in which the Judge’s staff attorney was inadvertently copied. In the email,

Attorney Coontz offered legal advice to Attorney Pfeiffer related to this matter which the

Court found to be directly adverse to her clients Plaintiffs Collins and Newman.

Attorney Coontz represented them as members of the State Board of Education. This

resulted in an Order which: (1) extended the TRO to October 20, 2023; (2) ordered

briefing on or before October 5, 2023 related to whether all counsel from the A.G.

should be disqualified from continuing to represent any party in this case; and (3)

extended the deadline for filing Proposed Findings of Fact and Conclusions of Law to

October 16, 2023.

On October 5, 2023, Attorney Pfeiffer filed a brief which indicated that the A.G.

asserted that disqualification was not warranted, but that the A.G. had already

appointed outside special counsel to take over representation of Defendants “out of an

abundance of caution and to eliminate distraction[.]” Accordingly, Attorney Larry Obhof

Jr. filed a Notice of Appearance and Substitution of Counsel for Defendants on October

9, 2023.

The parties timely filed their Proposed Findings of Fact and Conclusions of Law.

This Magistrate has reviewed all the parties’ filings. Having weighed the evidence

submitted during the hearing, having read and reviewed the exhibits and Verified

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Amended Complaint, and having applied the required law, this Magistrate hereby

renders the following decision:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This Magistrate’s Findings of Fact are based on the testimony of the witnesses

and the exhibits introduced into evidence. This Magistrate reviewed the Verified

Amended Complaint and all the exhibits and considered each as to its weight and

credibility. The credibility of all the witnesses was considered. The credibility of a

witness is based upon the appearance of the witness upon the stand; his/her manner of

testifying; the reasonableness of the testimony; the opportunity he/she had to see, hear

and know the things concerning which he/she testified; his/her accuracy of memory;

frankness (or lack of it); intelligence, interest and bias (if any); together with common

sense and all the facts and circumstances surrounding the testimony. Of importance in

deciding the Findings of Facts, this Magistrate notes that she is free to believe all,

some, or none of the testimony of each witness appearing before her. State v. Ellis, 8th

Dist., Cuyahoga No. 98538, 2013-Ohio-1184.

I. STANDARD OF REVIEW

A preliminary injunction is an extraordinary remedy; therefore, the moving party

has a substantial burden to meet in order to be entitled to the injunction. Sinoff v. Ohio

Permanente Med. Group, 146 Ohio App. 3d 732, 2001 Ohio 4186, 767 N.E.2d 1251,

citing Ormond v. Solon (Oct. 18, 2001), Cuyahoga App. No. 79223, 2001 Ohio App.

LEXIS 4654. The moving party must establish a right to a preliminary injunction by

showing clear and convincing evidence of each element of the claim. Sinoff v. Ohio

Permanente Med. Group, 146 Ohio App. 3d 732 (8th Dist. 2001), citing Vanguard Transp.

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Sys., Inc. v. Edwards Transfer & Storage Co., Gen. Commodities Div., 109 Ohio App.3d

786 (10th Dist. 1996). “Clear and convincing evidence is that measure or degree of proof

which will produce in the mind of the trier of facts a firm belief or conviction as to the

allegations sought to be established. It is intermediate, being more than a mere

preponderance, but not to the extent of such certainty as is required beyond a reasonable

doubt as in criminal cases.” Connor Grp. v. Raney, 2nd Dist. Montgomery, 2016-Ohio-

2959, ¶ 20, 2016 Ohio App. LEXIS 1836, *17 (May 13, 2016) (internal citations omitted).

In determining whether to grant a preliminary injunction, a court must consider:

(1) whether there is a substantial likelihood that the plaintiff will prevail on the

merits of its claims;

(2) whether the plaintiff will suffer irreparable harm if the injunction is denied;

(3) whether third parties will be unjustifiably harmed if the injunction is granted;

and

(4) whether the public interest will be served if the injunction is granted.

Hydrofarm, Inc. v. Orendorff, 2008-Ohio-6819, ¶18 (10th Dist.), quoting Vanguard Transp.

Systems, Inc. v. Edwards Transfer & Storage Co., 109 Ohio App.3d 786, 790 (10th

Dist.1996); Valco Cincinnati, Inc. v. N&D Machining Serv., Inc., 24 Ohio St.3d 41 (1986);

Corbett v. Ohio Building Authority, 86 Ohio App.3d 44, 49 (10th Dist.1993). See also

Thomas J. Dyer Co. v. Franklin County Convention Facilities Authority, 61 Ohio Misc.2d

132, 133-34 (Franklin Cty.C.P.1990). The primary goal of preliminary injunctive relief “is

to preserve the status quo pending final determination of the matter.” Ohio Urology, Inc.

v. Poll, 72 Ohio App.3d 446, 454 (10th Dist.1991).

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Moreover, the party seeking injunctive relief must establish a right to the

preliminary injunction by showing clear and convincing evidence of each element of the

claim. Vanguard, supra at 790; Cleveland v. Cleveland Elec. Illum. Co., 115 Ohio App.3d

1, 14 (10th Dist.1996). In determining whether to grant injunctive relief, no one factor is

dispositive; the four factors must be balanced with the “flexibility which traditionally has

characterized the law of equity.” Id. “When there is a strong likelihood of success on the

merits, preliminary injunctive relief may be justified even though a plaintiff's case of

irreparable injury may be weak. In other words, what [a] plaintiff must show as to the

degree of irreparable harm varies inversely with what [a] plaintiff demonstrates as to its

likelihood of success on the merits.” Id.

“Courts should take ‘particular caution . . . in granting injunction, especially in cases

affecting a public interest where the court is asked to interfere with or suspend the

operation of important works or control the action of another department of government.”

Danis Clarkco Landfill Co. v. Clark Cty. Solid Waste Mgt. Dist., 73 Ohio St.3d 590, 604

(1995), citing Leaseway Distrib. Centers, Inc. v. Dept. of Adm. Serv., 10th Dist. Nos. 88AP-

330, 88AP-332, 88AP-370 (June 16, 1988).

II. LIKELIHOOD THAT PLAINTIFFS WILL PREVAIL ON THE MERITS

Plaintiffs allege that certain provisions of H.B. 33 (“Challenged Provisions”)

violate the “single subject rule” included in Article II, Section 15(D) of the Ohio

Constitution, the “three-readings rule” in Article II, Section 15(C) of the Ohio

Constitution, and the responsibilities of the State Board under Article VI, Section 4 of the

Ohio Constitution. Ms. Voltolini, the Chief of Staff for the Ohio Department of

Education, testified that the Challenged Provisions modify the responsibilities of the

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State Board and the Superintendent of Public Instruction. These provisions also create

a new business unit for the Board, rename the existing Department of Education as the

Department of Education and Workforce (“DEW”), and make the DEW a cabinet-level

agency. [Ex. K, ¶ 8].

In 1953, the Ohio Constitution was amended to establish the State Board. Article

VI, Section 4 provides:

There shall be a state board of education which shall be selected in such

manner and for such terms as shall be provided by law. There shall be a
superintendent of public instruction, who shall be appointed by the state
board of education. The respective powers and duties of the board and of
the superintendent shall be prescribed by law.

The State Board consists of 19 members – 11 of whom are elected, and 8 of whom are

appointed by the Governor. The elected members represent constituents and their

interests from 11 separate geographic districts throughout the state. The 11 members

are elected to four-year terms in even-numbered years by voters in Ohio’s 11 State

Board Districts, each of which contain anywhere from 35 to 80 local school districts.

Each such Board District has unique characteristics and often differing challenges in the

education context.

S.B. 1, the predecessor to H.B. 33, was introduced into the Ohio Senate on

January 11, 2023. [Ex. 13]. On January 17, 2023, S.B. 1 was referred to the Senate

Economic Workforce and Development Committee. It passed the Senate on March 1,

2023. [Ex. 13]. S.B. 1 contemplated that the newly created DEW would be headed by

the Director of the DEW (“Director”), who would be appointed by the Governor with the

advice and consent of the Senate. [Ex. 9, p. 405]. S.B. 1 also sought to transfer “[a]ll

powers and duties regarding primary, secondary, special, and career-technical

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education granted to the state board, the superintendent, or the former department of

education . . . except those prescribed for the state board of education as described in

section 3301.111 of the Revised Code” to the Director. [Ex. 9, pp. 405-406].

On March 14, 2023, S.B. 1 was referred to the House Economic and Workforce

Development Committee. It was never voted out of that Committee. [Ex. 13]. H.B. 12,

the House’s companion bill to S.B. 1, was introduced in the Ohio House on February 15,

2023. H.B. 12 was referred to the House Primary and Secondary Education Committee

on February 16, 2023, from which it never reemerged. [Ex. 12].

H.B. 33, the state’s general operating and appropriations budget for fiscal years

2024-2025, was introduced in the House on February 15, 2023. The “long title” of the

bill states that it is intended, among other purposes, “to make operating appropriations

for the biennium beginning July 1, 2023, and ending June 30, 2025, to levy taxes, and

to provide authorization and conditions for the operation of state programs.” [Ex. 6, p.

11]. The “as-introduced” version of H.B. 33 included authorizations and conditions for

the operation of many state programs. For example, the as-introduced version included

provisions for the creation of the Department of Children and Youth, and transferred to it

certain responsibilities of other departments or state agencies. [Ex. 6, pp. 141-142].

The as-introduced version did not include the Challenged Provisions. On April 26,

2023, the House passed H.B. 33

The next day, H.B. 33, as passed by the House, was introduced into the Senate.

[Ex. 36, p. 3]. During the Senate’s consideration of H.B. 33, the Senate amended the

bill to add the Challenged Provisions. On June 15, 2023, the Senate passed H.B. 33

which included the Challenged Provisions. [Ex. 8, pp. 6357-58]. On June 21, 2023, the

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House voted not to concur with Senate amendments to H.B. 33, which included the

Challenged Provisions. [Ex. 24, p. 497]. Consequently, at the Senate’s request, the

amendments were considered by a budget conference committee, made up of

members of both legislative Chambers.

The conference committee held hearings on H.B. 33 on June 22, 28, and 30,

2023. The conference committee discussed the Challenged Provisions, referred to as

the “[t]ransfer of state K-12 education governance,” for the first time in the June 28

hearing. [Ex. 15, p. 7]. On June 30, 2023, H.B. 33, with the Challenged Provisions,

reported out of committee and was read in the House for the first and only time. [Ex.

26]. The same day, the General Assembly passed H.B. 33 with a successful floor vote

in each Chamber. On July 4, 2023, Governor DeWine signed H.B. 33 into law.

Plaintiffs argue that “the [Challenged Provisions do] not create a new body,

separate and apart from the Board, but instead, it unconstitutionally hollows out the

constitutionally mandated, independent Board by transferring all of its core

responsibilities to an agency controlled by the Governor. The [Challenged Provisions]

remove the Board all together from Section 3301.07, the statute that had governed its

duties for 70 years, simply by striking the words ‘state board of education’ and replacing

them with ‘department of education and workforce’ throughout.” [Plaintiffs’ Proposed

Findings and Conclusions, p. 14].

It is undisputed that the Challenged Provisions transfer duties and responsibilities

from the State Board to the DEW. Before enactment of the Challenged Provisions, R.C.

3301.07 stated that “[t]he state board of education shall exercise under the acts of the

general assembly general supervision of the system of public education in the state.”

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Under the new Challenged Provisions, R.C. 3301.07 states that “[t]he director of

education and workforce shall exercise under the acts of the general assembly of the

system of public education in the state.” [Ex. 39, p. 4379]. The undisputed transfers

include the following:

- creating the DEW, which “shall be headed by the director of education

and workforce, who shall be appointed by the governor with the advice
and consent of the senate,” [Ex. 39, p. 4446];

- transferring “[a]l powers and duties regarding primary, secondary, special,

and career-technical education granted to the state board, the state
superintendent1, or the former department of education . . . except those
prescribed for the state board of education as described in section
3301.111 of the Revised Code . . . to the director of education and
workforce,” [Ex. 39, pp. 4446-47]; and

- Vesting the Director with the authority to “exercise under the acts of the
general assembly general supervision of the system of public education in
the state . . . “ including (1) the authority to “exercise policy forming,
planning, and evaluative functions for the public schools of the state
except as otherwise provided by law”; (2) the power to “develop the
standard of financial reporting which shall be used by each school district
board of education and governing board of educational service center”;
(3) the authority to “administer and supervise the allocation and
distribution of all state and federal funds for public school education under
the provisions of law”; (4) the power to “formulate and prescribe minimum
standards to be applied to all elementary and secondary schools in th[e]
state for the purpose of providing children access to a general education
of high quality according to the learning needs of each individual,
including students with disabilities, economically disadvantaged students,
English learners, and students identified as gifted” [Ex. 39, pp. 4379-80].

The Challenged Provisions also transfer the following duties and responsibilities from

the Superintendent to the Director:

- “provid[ing] technical and professional assistance and advice to all

school districts in reference to all aspects of education, including
finance, buildings and equipment, administration, organization of school
districts, curriculum and instruction, transportation of pupils, personnel
problems, and the interpretation of school laws and state regulations.”;

1 Hereinafter “Superintendent”.

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- “Prescribi[ing] and require[ing] the preparation and filing of such financial

and other reports from school districts, officers, and employees as are
necessary or proper.”;

- “Prescrib[ing] and require[ing] the installation by school districts of such

standardized reporting forms and accounting procedures as are
essential to the businesslike operations of the public schools of the
state.”;

- “Conduct[ing] such studies and research projects as are necessary or

desirable for the improvement of public school education in Ohio . . .
[which] may include analysis of data contained in the education
management information system established under section 3301.0714
of the Revised Code.”;

- “Prepar[ing] and submit[ting] annually a report of the activities of the

department and the status, problems, and needs of education in the
state.”; and

- “Supervis[ing] all agencies over which the board exercises

administrative control, including schools for education of persons with
disabilities.”

[Ex. 39, p. 4439].

It is uncontested that under the Challenged Provisions, the State Board will

continue to govern the following:

- The adoption of requirements for educator licensure, licensee

disciplinary actions, and school district territory transfer determinations.
R.C. 3301.111(A);

- The appointment of the superintendent of public instruction. R.C.

3301.111(C);

- Teacher and school counselor evaluation systems. R.C. 3319.112 and

3319.113;

- Annual teacher recognition programs. R.C. 3314.67; and

- The Educator Standard Board. R.C. 3319.60.

Additionally, under the Challenged Provisions, the “state board shall make

recommendations to the director of education and workforce regarding priorities for

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primary and secondary education.” R.C. 3301.111(B). Ms. Voltolini testified that the

DEW and the Director will continue to implement state education law and policies in a

similar fashion as did the State Board prior to the passage of S.B. 33, i.e. maintain the

same public comment plans and processes in place, public transparency, public

meetings, and open communication with stakeholders and partners to obtain feedback

and information. The Magistrate finds this testimony credible.

STANDING

A key issue is whether Plaintiffs, as (1) parents of children attending Ohio public

schools (“Parent Plaintiffs”) and (2) TPS, have standing to sue. “Before an Ohio court

can consider the merits of a legal claim, the person or entity seeking relief must

establish standing to sue.” Ohio Pyro, Inc. v. Ohio Dept. of Commerce, Div. of State

Fire Marshal, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 27. As stated by

the Ohio Supreme Court:

The Ohio Constitution expressly requires standing for cases filed in common
pleas courts. Article IV, Section 4(B) provides that the courts of common
pleas “shall have such original jurisdiction over all justiciable matters.”
(Emphasis added.) A matter is justiciable only if the complaining party has
standing to sue. Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio
St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 41. (“It is fundamental that a
party commencing litigation must have standing to sue in order to present a
justiciable controversy”). Indeed, for a cause to be justiciable, it must present
issues that have a “direct and immediate” impact on the plaintiffs. Burger
Brewing Co. v. Liquor Control Comm., Dept. of Liquor Control, 34 Ohio St.2d
93, 97-98, 296 N.E.2d 261 (1973). Thus if a common pleas court proceeds
in an action in which the plaintiff lacks standing, the court violates Article IV
of the Ohio Constitution. Article IV requires justiciability, and justiciability
requires standing. These constitutional requirements cannot be bent to
accommodate Sheward.

ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d 520, 2014-Ohio-2382, 13

N.E.3d 1101, ¶ 7.

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Standing does not depend on the merits of the plaintiff’s claim. Moore v. Middletown,

133 Ohio St3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 23. Rather, standing depends

on whether the plaintiffs have alleged such a personal stake in the outcome of the

controversy that they are entitled to have a court hear their case. ProgressOhio.org,

Inc. v. JobsOhio, supra, at ¶ 7.

Common-law standing requires a litigant to demonstrate that they suffered: (1) an

injury; (2) that is fairly traceable to the defendant’s allegedly unlawful conduct; and (3)

that is likely to be redressed by the requested relief. Ohioans for Concealed Carry, Inc.

v. City of Columbus, 164 Ohio St.3d 291, ¶ 12 (2020). For common-law standing, a

party wishing to sue must have a “direct, personal stake” in the outcome of the case;

“ideological opposition to a program or legislative enactment is not enough.” State ex

rel. Walgate v. Kasich, 147 Ohio St.3d 1, ¶ 18 (2016), quoting ProgressOhio.org, Inc.,

supra, at ¶ 1 (2014). “The essence of the doctrine of standing is whether the party

seeking relief has ‘alleged such a personal stake in the outcome of the controversy as

to assure that concrete adverseness which sharpens the presentation of issues upon

which the court so largely depends for illumination.’” Racing Guild of Ohio, Local 304 v.

Ohio State Racing Comm., 28 Ohio St.3d 317, 321 (1986), quoting Baker v. Carr, 369

U.S. 186, 204 (1962).

Plaintiffs allege that they have common-law standing and have suffered an actual

injury in this matter. For clarification, they are claiming they suffered individual, actual

injury as parents of children in Ohio public schools and as a local district school board.

No Plaintiff claims standing as a taxpayer or “public-right”2 standing.

2The public-right doctrine applies only to original actions in mandamus and/or prohibition. It does not
apply to declaratory judgment actions filed in common pleas courts. ProgressOhio.org, Inc., supra, at ¶ 1.

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Parent Plaintiffs maintain that the Challenged Provisions deprive them of local,

elected representation in state education governance and strip them of their voices in

their children’s education. Ms. Collins testified that she has regularly communicated

with her elected State Board member to address various concerns she has regarding

issues germane to her children’s education such as dyslexia standards, standardized

testing, and academic standards. The State Board would frequently have committees

address specific issues brought to them by parents such as herself. Parents such as

herself were able to appear publicly before the State Board to air their concerns. She is

concerned that the Challenged Provisions’ transfer of core duties and responsibilities

related to her issues from the State Board to the Director eliminates transparency and

stifles public debate of educational issues. She acknowledges that under the

Challenged Provisions, she could still bring issues to her representative, but claims that

the representative would be unable to properly address them.

Similarly, Ms. Eichenberg, as a parent, has had conversations with her State

Board representative to address subjects that could detrimentally affect her children

such as the third grade reading guarantee. Her representative took such concerns to

meetings and hearings, gathered input, and altered the application of the third grade

reading guarantee. Ms. Eichenberg was herself elected to TPS’s Board of Education in

2016.3 During her time on the Board, she was very concerned, as a parent and a Board

member, about an academic distress committee taking over control of Toledo Public

Schools. As a result, TPS passed a resolution and subsequently met with its

3 She no longer serves as a member of the board.

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representative and the president of the State Board in Toledo to tour TPS’s schools and

give them additional information for the academic distress commission to consider.

As a parent and former member of TPS, Ms. Eichenberg is concerned about the

following transfer of powers and duties to the Director: assessments, funding of schools,

state standards, gifted education, delivery of state standards, the state report card,

advocating for children’s education, social and emotional learning policies, graduation

requirements, and capstone requirements. Her concerns lie in the loss of transparency

and access to the State Board’s open meetings. As a member of TPS, she reviewed

the State Board’s minutes which assisted her in advocating her position on issues or

pending legislation. She stated that without all the current access, it would have been

more difficult to be an advocate for her children and TPS’s students and would have

hurt TPS’s ability to serve her children and other students in Toledo Public Schools.

TPS claims that it has standing based on the following:

[The Challenged Provisions strip] the TPS Board of its ability to engage with
an accessible, transparent, and responsive State Board including its elected
member with the authority to set and implement education policy, thereby
diminishing the TPS Board’s ability to serve the students in its communities.
Indeed, the TPS Board routinely shares its local perspective and
particularized needs with the State Board, giving it a direct line of
communication to the body currently empowered to set educational
standards, reporting requirements, and other crucial topics. The TPS Board
likewise relies on its State Board member to help the TPS Board understand
and implement state educational requirements, improve its schools’
academic performance, and develop curricula, among many other matters.
[Plaintiff’s Proposed Findings and Conclusions, p. 49].

Sheena Barnes is the President of TPS. She has children in Toledo Public

Schools. Like Ms. Eichenberg, Ms. Barnes stated that TPS relies on the State Board’s

public meetings, its publicly available meeting minutes, and its elected member’s

willingness to visit Toledo Public schools and attend TPS board meetings to stay

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apprised of new developments in education policy and communicate the needs of TPS’s

schools to the State Board. She agreed that TPS relies on the transparency provided

by the State Board’s open meetings and recorded minutes to ensure that TPS

understands and complies with state law and new statewide policies. Ms. Barnes

stated that she has sought advice from the State Board on things like how to improve

Toledo Public Schools’ performance on the Ohio School Report Cards, whether a new

voucher program would affect TPS’s budget, and how to improve its programming for

students with special needs. She testified about TPS’s ability to elevate the needs of

the Toledo Public Schools to the State Board, including, for example, successfully

encouraging the State Board to adopt standards related to social-emotional learning

and ensuring that the experiences of TPS’s black and brown students are incorporated

into a curriculum on interacting with law enforcement.

Defendants argue Plaintiffs lack standing to sue because they have not alleged

an injury in fact sufficient to confer standing and that any claimed harm is speculative.

Defendants cite Ohio Democratic Party v. LaRose, 10th Dist. Nos. 20 AP-421 and 20AP-

428, 2020-Ohio-4664, which states:

To establish the first element of traditional standing, a plaintiff must

demonstrate that the challenged action will cause it injury in fact, whether
that injury is economic or otherwise. League of United Latin Am. Citizens v.
Kasich, 10th Dist. No. 10AP-639, 2012-Ohio-947, ¶ 34. The injury must be
concrete, not simply abstract or suspected. State ex rel. Food & Water
Watch v. State, 153 Ohio St.3d 1, 2018-Ohio-555, ¶20, 100 N.E.3d 391.
Additionally, the injury must be particularized, meaning the injury is not
bourne by the population in general, but affects the plaintiff in a personal and
individual way. Spokeo, Inc. v. Robbins, ___ U.S.___, 136 S.Ct. 1540, 1548,
194 L.Ed.2d 635 (2016); League of United Latin Am. Citizens at ¶ 21.
Importantly, the injury need not be large, but only “palpable.” League of
United Latin Am. Citizens at ¶ 21. Accord New York Republican State
Commt. V. Secs. & Exchange Comm., 927 F.3d 499, 504, 441 U.S. App.
D.C. 413 (D.C.Cir.2019) (“Even slight injury is sufficient to confer

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standing[.]”); Crawford v. Marion Cty Election Bd., 472 F.3d 949, 951 (7th Cir.
2007) (holding that standing “requires only a minimal showing of injury”).

Id. at ¶ 19.

Accordingly, it must first be determined whether the alleged injuries, assuming

they exist, affect the Plaintiffs in a personal and individual way rather than being bourne

by the population in general. In LaRose, an individual sought to enjoin the Ohio

Secretary of State from enforcing his directive that boards of election accept delivery of

applications for absentee ballots only as submitted in person or by mail and not by

electronic means such as email or fax. The Secretary of State argued that the

individual lacked standing to sue and that the alleged injury was not particularized

because it was the same sort of injury that any Ohioan seeking to vote absentee would

suffer. The Tenth District rejected this argument holding as follows:

A plaintiff who complains only of an injury sustained by the general public

raises a generalized grievance against the law instead of establishing a
particularized injury. Walgate, 2016-Ohio-1176 at ¶ 19, 147 Ohio St.3d 1, 59
N.E.3d 1240. Thus, for example, in Walgate, the plaintiffs lacked standing to
challenge the constitutionality of gambling legislation because they failed to
allege any injury beyond the negative effects of gambling that applied equally
to all members of the general public. Id. at ¶ 22. This case is not like
Walgate. Here, [the individual] asserts an injury appliable to a subset of the
general population, i.e., those Ohioans who decide to vote via absentee
ballot. While many Ohioans will suffer or have suffered the same sort of
injury as [the individual], “[t]he fact that an injury may be suffered by a large
number of people does not of itself make that injury a nonjusticiable
generalized grievance.” Spokeo, Inc. at 1548, fn. 7. Where harm is
concrete, although widely shared, courts have found injury in fact, particularly
when “large number of voters suffer interference with voting rights conferred
by law” as [the individual] claims here. [The individual]’s injury is concrete.
Consequently, even though multiple people will or have experienced the
same type of injury, [the individual]’s injury remains particular to him.

Id. at ¶ 23.

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Defendants argue that the Plaintiffs in this case do not assert any concrete and

particularized injury that is different from the impact on Ohio’s parents or school districts

generally. They contend that, in essence, a plaintiff who complains only of an injury

sustained by the general public raises a generalized grievance against the law instead

of establishing a particularized injury. State ex rel. Walgate v. Kasich, 147 Ohio St.3d 1,

¶ 19. In Walgate, the Court determined whether parents of public-school students had

standing to pursue claims of unconstitutional diversion of lottery proceeds and casino

tax proceeds from education or school funds. The parents claimed that funds that

should go to schools had been redirected and that net proceeds of lotteries were being

distributed to gambling interests instead of educational programs as required by the

Ohio Constitution. Id. at ¶ 31. The Supreme Court held that the parents lacked

standing because “[m]any members of the general public who are [not] parents of

public-school students . . . contribute to the funding of public schools in one form or

another. Appellants’ interest in ensuring that the public-school system receives the

proper funds is shared by the general public.” Id. at ¶ 33.

The Tenth District similarly found that parents of public-school students lacked

standing in Toledo City School Dist. Bd. Of Edn. v. State Bd . of Educ., 2014-Ohio-3741,

18 N.E.3d 505 (10th Dist.) (reversed on other grounds.). In that case, the Court of

Appeals held that parents of public-school students did not have standing where they

failed to allege that their children had been denied special education opportunities

caused by the Ohio Department of Education’s failure to fund their district at the

statutory rate. Id. at ¶ 57-59.

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Walgate and Toledo City School Dist. Bd. Of Edn. are distinguishable from this

case. Here, the Parent Plaintiffs’ and TPS’s claimed injuries that, if proven, amount to

direct harm in the form of loss of meaningful, transparent, publicly accessible

representation with elected State Board members regarding their children’s specific

educational needs. In addition, the claimed injuries are unique to Plaintiffs and not

experienced by the general public. Applying LaRose, the Magistrate finds that Parent

Plaintiffs and TPS, despite the fact that they constitute a large number of people or

entities, assert an injury applicable to a subset of the general population. Plaintiffs

presented sufficient evidence to support their claim of specific injuries that are unique

and different from the general public, that could be redressed through their requested

relief, and were caused by Defendants’ enactment of H.B. 33. Accordingly, Parent

Plaintiffs and TPS would have standing if they could meet their burden of proof as to

their alleged injury.

In determining whether or not Plaintiffs meet their burden of proof as to their

alleged injury, the Magistrate notes that the Challenged Provisions do not abolish the

State Board. Statutes4 establishing the State Board and election of its members are not

altered by the Challenged Provisions. Plaintiffs counter that rationale with the argument

that their “injuries arise not from their ability to vote for a representative in the abstract,

but to engage with elected State Board members vested with the power to set and

implement education policy.” [Plaintiffs’ Proposed Findings and Conclusions, p. 48].

However, that argument rings hollow. The State Board is not constitutionally “vested”

4 R.C. 3301.01 and 3301.02.

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with the transferred powers: it has no permanent right to them. Article VI, Section 4 of

the Ohio Constitution reads as follows:

There shall be a state board of education which shall be selected in such

manner and for such terms as shall be provided by law. There shall be a
superintendent of public instruction, who shall be appointed by the state
board of education. The respective powers and duties of the board and
of the superintendent shall be prescribed by law. (Emphasis added.)

Plaintiffs argue that the legislative history is important in analyzing whether the

General Assembly violated Article VI, Section 4 when it enacted H.B. 33. Plaintiffs cite

as authority Chief Justice Kennedy’s concurring opinion in City of Maple Heights v.

Netflix, Inc., 171 Ohio St.3d 53, ¶ 37 (2022):

The Court normally interprets a statute in accord with the ordinary public
meaning of its terms at the time of its enactment. After all, only the words on
the page constitute the law adopted by Congress and approved by the
President. If judges could add to, remodel, update, or detract from old
statutory terms inspired only by extratextual sources and our own
imaginations we would risk amending statutes outside the legislative process
reserved for the people’s representatives. And we would deny the people
the right to continue relying on the original meaning of the law they have
counted on to settle their rights and obligations. Id., citing Bostock v. Clayton
Cty., Georgia, __ U.S. __ 140 S. Ct. 1731, 1738 (2020).

Chief Justice Kennedy, in her majority opinion, in Toledo City Sch. Dist. Bd. Of

Educ. V. State Bd. Of Educ. of Ohio, 146 Ohio St.3d 356 (2016), took the same stance.

Although Toledo City Sch. Dist. Bd. Of Educ. precedes City of Maple Heights, Justice

Kennedy noted:

Generally speaking, in construing the Constitution, we apply the same rules

of construction that we apply in construing statutes. Miami Cty. V. Dayton,
92 Ohio ST. 215, 223, 110 N.E. 726 (1915). Therefore, the intent of the
framers is controlling. State v. Jackson, 102 Ohio St.3d 380, 2004-Ohio-
3206, 811 N.E.2d 68, ¶ 14. To determine intent, we must begin by looking at
the language of the provision itself. State ex rel. Maurer v. Sheward, 71 Ohio
St.3d 513, 520, 1994-Ohio-496, 644 N.E.2d 369 (1994). “Where the
meaning of a provision is clear on its face, we will not look beyond the
provision in an attempt to divine what the drafters intended it to mean.” Id. at

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520-521. Words used in the Constitution that are not defined therein must be
taken in their usual, normal, or customary meaning. State ex. Rel. Herman v.
Klopfleisch, 72 Ohio St.3d 581, 584, 651 N.E.2d 995 (1995); see also R.C.
1.42. If the meaning of a provision cannot be ascertained by its plain
language, a court may look to the purpose of the provision to determine its
meaning. See Castleberry v. Evatt, 147 Ohio St. 30, 67 N.E.2d 861 (1946),
paragraph one of the syllabus. Id. at ¶ 16.

In that case, the Court construed the Retroactively Clause of the Ohio Constitution. The

Court noted that the Retroactively Clause remained unchanged from its adoption in

1851, and therefore examined whether “retroactive laws” was a term of art with an

established meaning at the time of the ratification of the 1851 Constitution.

In this case, Plaintiffs do not argue and this Magistrate does not find that the

provision “[t]he respective powers and duties of the board and of the superintendent

shall be prescribed by law” contains any term of art or wording that would reasonably

have had a different meaning in 1953 than it does today. As a result, the meaning of

this constitutional provision can be ascertained from its plain language. This precludes

reliance on the legislative history of Chapter VI, Section 4. Thus, as written, the

Legislature has complete authority to grant, or remove, the respective powers and

duties of the State Board and the Superintendent, and the State Board has no

constitutional right to retain all the powers transferred under the Challenged Provisions.

See Board of Education v. State Board of Education, 116 Ohio App. 515, 518 (12th Dist.

1962) (“the control of schools, be they public or private, providing elementary and

secondary for the youth of Ohio, reposes in the Legislature of our state. When the

General Assembly speaks on matters concerning education it is exercising plenary

power and its action is subject only to the limitations contained in the Constitution. An

examination of the Constitution reveals that the only prohibition in the Constitution

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concerning the exercise of this power over elementary and secondary education is as to

religion, i.e., the release of public school funds to control by a religious group or sect is

prohibited. . . the Legislature of Ohio, in passing laws concerning elementary and

secondary schools, is restrained only by its own conscience, fear of the electorate, and

one section of the Constitution.”)

The remaining crux of Plaintiffs’ alleged injury is simply that they rely on their

ability to engage with elected State Board members, participate in the State Board’s

transparent public meetings, and refer to the State Board’s minutes in order to

successfully advocate for their children and others enrolled in Toledo Public Schools.

The Challenged Provisions do not alter the statutes5 that require the State Board have

public meetings open to the public wherein audio recordings and minutes are available

to the public. Plaintiffs retain the same unfettered open access to the members of the

State Board to convey questions or concerns, to attend meetings, and to refer to

minutes. Notably, under the Challenged Provisions, Board members are then required

to take any issues or recommendations based on input from people like these Plaintiffs

to the Director of the DEW: “[t]he state board shall make recommendations to the

director of education and workforce regarding priorities for primary and secondary

education.” (Emphasis added.) [Ex. 39, p. 4437].

5 R.C. 3301.04, 3301.041, and 3301.05.

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In addition, the Challenged Provisions also guarantee open access to Plaintiffs

and members of the State Board with regard to rulemaking by the DEW:

Stakeholder6 outreach and rulemaking

The bill requires DEW to establish a stakeholder outreach process

for use when it engages in rulemaking. DEW must establish a method
under which stakeholders may elect to participate in the process. The
process must include both a notice and an opportunity for stakeholder
feedback prior to DEW initiating rulemaking and submitting a proposed
rule to the Joint Committee on Agency Rule Review (JCAAR). The
process also may include stakeholders (sic) meetings, questionnaires for
stakeholders, or stakeholder advisory groups.

The bill expressly states that a notice under the process is not a
public notice, but rather it is a courtesy for stakeholders. DEW also is not
required to send draft rules out to, nor negotiate draft rule language with,
stakeholders.

Prior to initiating rulemaking

Prior to conducting a five-year review, adopting a new rule, or

amending or rescinding an existing rule, DEW must notify stakeholders of
its intent to initiate rulemaking and provide an explanation of the rationale
for doing so. The notice must include:

1. For a five-year review in which DEW decides not to make any

changes to an existing rule, a statement that the rule is not being
changed;
2. For a new rule or an amendment or rescission of an existing rule,
information explaining the rationale for the new rule or rule change,
including any state or federal law changes that make it necessary;
and
3. A link to a webpage on DEW’s website that provides an opportunity
to:

a. Review the existing rule, if one exists;

b. Submit public comments for a period of time established by DEW;
and

6“Stakeholder” means those who directly affect or are affected by the educational success of a school
district and school. Stakeholders may include, but are not limited to, colleges and universities, school
district and school staff, employers, parents, students, and other individuals or groups in the community.
OAM 3301-35-01

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c. Provide, as part of the public comment system, a chance to submit

information that might aid DEW in preparing a business impact
analysis, if one is required.

DEW must consider each submitted comment provided during the public
comment period. However, it is not required to respond to them.

Prior to submitting a proposed rule to JCARR

Prior to submitting a proposed rule to JCARR, DEW must post the

draft rule and a completed business impact analysis, if one is required, on
DEW’s website and notify stakeholders that they have been posted. The
notice must include a link to a webpage on DEW’s website that provides
the opportunity to review the draft rule, and the business impact analysis if
required, and submit public comments for a period established by DEW.
DEW must consider each comment if receives and may revise the draft
based on them. If the Department determines further outreach is
necessary, it must hold stakeholder meetings, send questions to
stakeholders, or create stakeholder advisory groups.

Public presentation requirement

The bill requires the Director or the Director’s designee, to convene a

public meeting at least every other month. DEW employees must conduct
a presentation at each meeting that addresses any new information DEW
has about:

1. Any of its significant new or existing initiatives, policies, or guidelines;

2. Any change to state or federal law that affects DEW or education
stakeholders; and
3. Any rule the Director intends to adopt, amend, or rescind.

At the conclusion of a presentation, the Director, or designee, must

provide an opportunity for public discussion on the information in the
presentation or other appropriate topics, as determined by the Director or
designee. DEW must make available via the internet an audio recording
of each meeting within five days after its conclusion.

Under the bill, any nonemergency rule adopted after the bill’s effective
date is void unless the rule was included in a presentation conducted in
one of these presentations.

In addition, the bill requires the Director to schedule meetings for FY

2024 in a timely manner.

[Ex. 30, pp.201-203].

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Given the foregoing, the injuries alleged by Plaintiffs are sufficient to provide

them with standing. However, the Magistrate further finds that Plaintiffs failed to meet

their burden by proving clearly and convincingly that they will sustain any of their

claimed injuries under the Challenged Provisions. Notwithstanding the abruptness and

significance of the powers transferred under the Challenged Provisions, Plaintiffs failed

to establish that they have a right to an injunction in this matter. As noted above,

standing does not depend on the merits of a plaintiff’s claim. Moore, supra, at ¶ 23.

Therefore, the Magistrate finds that Plaintiffs failed to meet their burden of proving that

they are likely to prevail on the merits.

III. WHETHER PLAINTIFFS WILL SUFFER IRREPARABLE HARM IF THE

INJUNCTION IS NOT GRANTED

To obtain a preliminary injunction, a plaintiff must prove that immediate and

irreparable harm, loss, or damage will result to the plaintiff if the preliminary injunction is

not issued, and no adequate remedy at law is available to the plaintiff. Sommer v. Mt.

Carmel Health, 10th Dist. Case No. 94APE07-1087, 1995 Ohio App. LEXIS 1300. In

their Proposed Findings of Fact and Conclusions of Law, Plaintiffs’ arguments of harm

under this factor mirror the harm they argued for standing to sue. As set forth above,

Plaintiffs failed to prove by clear and convincing evidence that they will suffer any of

their claimed injuries if injunctive relief is denied.

IV. HARM TO THIRD PARTIES AND PUBLIC INTEREST FACTORS

Plaintiffs argue that no third parties will be harmed if their request for a

preliminary injunction is granted and that the public interest favors an injunction in this

case because the Challenged Provisions are unconstitutional. However, as this

Magistrate finds that Plaintiffs are unlikely to succeed on the merits of their challenge to

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H.B. 33, the presumption of constitutionality must be referenced. When a statute is

challenged, it is presumed constitutional and the public interest is not served by lightly

assuming otherwise.

Defendants argue that an injunction will cause confusion, unrest and chaos for

Ohio’s educational system. Defendants presented credible evidence that, prior to the

issuance of the TPO, the State invested significant effort to implement the Challenged

Provisions as the General Assembly directed. Ms. Voltolini testified at the hearing and

in her affidavit (admitted as Exhibit K) that, as Chief of Staff, she has been actively

involved in implementing the transition required under H.B. 33., including:

1. Searching for a new Superintendent;

2. Planning and implementing a transition plan for the State Board by

coordinating with certain stakeholders, such as the Department of
Administrative Services, the Ohio Department of Budget Management,
the Governor’s Office of Boards and Commissions, and various unions
and other employee groups;

3. Creating a new executive branch entity for the State Board and
transitioning the employees, assets, duties, and responsibilities between
the Department and State Board; and

4. Renaming and transitioning the Ohio Department of Education to the

DEW.

These factors weigh against granting an injunction.

Based on the foregoing and on an equitable balancing of all four factors for

determining injunction relief, Plaintiffs’ request for a preliminary injunction should be

denied.

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DECISION

Based on the Findings of Fact and Conclusions or Law set forth above, Plaintiffs’

request for a Preliminary Injunction should be DENIED.

A PARTY SHALL NOT ASSIGN AS ERROR ON APPEAL THE COURT’S ADOPTION

OF ANY FACTUAL FINDING OR LEGAL CONCLUSION, WHETHER OR NOT
SPECIFICALLY DESIGNATED AS A FINDING OF FACT OR CONCLUSION OF LAW
UNDER CIV.R. 53(D)(3)(a)(ii), UNLESS THE PARTY TIMELY AND SPECIFICALLY
OBJECTS TO THAT FACTUAL FINDING OR LEGAL CONCLUSION AS REQUIRED
BY CIV.R. 53(D)(3)(b).

Copies electronically to all counsel of record.

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Franklin County Court of Common Pleas

Date: 10-20-2023

Case Title: CHRISTINA COLLINS ET AL -VS- STATE OF OHIO ET AL

Case Number: 23CV006611

Type: MAGISTRATE DECISION

So Ordered

/s/ Magistrate Jennifer D. Hunt

Electronically signed on 2023-Oct-20 page 29 of 29